Nation-to-nation relationship taking shape

Prime Minister Justin Trudeau and AFN National Chief Perry Bellegarde at the Assembly of First Nations Special Chiefs Assembly in Gatineau, Tuesday December 8, 2015. THE CANADIAN PRESS/Adrian Wyld

In a speech to the Assembly of First Nations in a Gatineau hotel last December, Prime Minister Justin Trudeau gave what might have been his biggest promise in an already-crowded slate of commitments to indigenous peoples.

After barely a month on the job, Trudeau told the roomful of First Nations leaders he was open to repealing laws unilaterally imposed on them.

“Where measures are found to be in conflict with your rights, where they are inconsistent with the principles of good governance, or where they simply make no public policy sense, we will rescind them,” said Trudeau.

With this exercise in reconciliation before it, the Liberals are starting to match rhetoric with action, at least in some ways.

Indigenous and Northern Affairs Canada (INAC) has opened around 20 “exploratory tables” – as the department is calling them – with indigenous leaders on potential self-government and land agreements, said Joe Wild, senior assistant deputy minister for treaties and aboriginal government, during an exclusive interview with iPolitics.

The exploratory tables – a series of non-binding discussion groups that are meant to find consensus ahead of tougher negotiations over powers — have the potential to one day create the material for a broad, national policy on indigenous self-government and sovereignty rights. But that isn’t necessarily the goal.

Joe Wild, senior assistant deputy minister for treaties and aboriginal government at Indigenous and Northern Affairs Canada. Photo provided by INAC.“It helps to inform how we’re developing a policy framework that maybe knits some of this together and maybe your policy framework really just ends up being just a bunch of core principles to help guide policy,” said Wild, speaking in his office overlooking the Ottawa River in Gatineau.

The tables are predicated on the unique challenges of having a policy on indigenous self-government, which could easily lose legitimacy if INAC took a strong-arm approach. That’s why the department calls the tables “co-development” — it’s a vision-making process that is supposed to lead to shared ideas about ultimate aims rather than beginning with an adversarial forum.

“It’s more flexibility on my end to be able to say, ‘We’re going to allow for the fact that things can look a little different in different communities based on needs — and based on their actual experience of what their needs are on the ground and I don’t need to force anyone into a cookie-cutter approach,'” said Wild.

The tables represent a significant break from past approaches in that Ottawa is open to hearing more innovative ideas about how to entrench indigenous rights into the core of how communities are governed, said Wild.

In Canada, there are major gaps among communities over self-governance because of the date agreements were entered into and the evolution of court decisions and public opinion over the past century.

To help make sense of it all, INAC makes a distinction between pre-1975 treaties and post-1975 treaties — 1975 being the year the first modern land claim was signed in Quebec. The federal government never interpreted many of the treaties before 1975 in a way that aligns with recent judicial interpretations on aboriginal rights. They were also accompanied by legislation that sought assimilation and social control like the Indian Act, which created a system of band governance that doesn’t provide for autonomy remotely resembling an equal footing with Canada.

There are 70 treaties across the country classified under the pre-1975 category, according to INAC. Among the post-1975 deals, there are 26 modern comprehensive land claim agreements across Canada, says the Land Claims Agreements Coalition, a lobby group for signatories to modern claims. There are over 100 self-government and land claim negotiating tables still in process across the country, some of which have been in place for decades, according to INAC.

The majority of First Nations people — not including Inuit or Metis communities — live under the pre-1975 treaties. There are 617 First Nations communities Canada and 364 of those are under those deals, representing 59 per cent of the total aboriginal population.

And critically, there are dozens of regional groups that represent nations outside of any formal political or legal process. While these likely play a key role in the exploratory tables — especially in places where dozens of communities consider themselves to be part of one nation — INAC will not divulge who sits on each table.

On top of the legacy of Canada’s interpretation of the pre-1975 treaties, there’s another way in which Ottawa’s rules on sovereignty frustrate indigenous peoples. The federal government’s own policies on self-government and comprehensive land claims since 1975 are dated when compared to court decisions as well. The department’s ‘Inherent Right Policy’ – which is the core of its views on self-government — is decades-old, while the comprehensive land claim policy – which determines how modern land claims are negotiated – dates back to the 1990s.

The exploratory tables offer a route to overcome both of these anachronisms.

“There’s a notion of sovereignty that can still exist in a way that doesn’t threaten the fabric of the nation,” said Wild. “There may be a few areas where you’ve got to be a little bit careful, like raising an army, the border of the country versus other countries, but the rest of it? You could probably figure out ways in which it all kind of works and it doesn’t actually do anything that would threaten the standing of Canada as Canada.”

Wild, who sits at the apex of one of the most unique mandates in the federal government, has wrestled with the concepts he’s now charged with enforcing.

A career public servant with a background in law, he speaks with a passion about the delicate nature of indigenous rights in policy-making. But he didn’t come to the post, which he took two years ago, with an appreciation for their scope.

After a youth spent in the Canadian public school system, and even courses in law school that covered recent developments in aboriginal law, he saw indigenous issues really just as a matter for social engineering like finding ways of boosting education levels. He had no idea how powerful terms like self-government were until he heard what they meant to actual indigenous people.

“When I first started the job, I wanted to really focus on outcomes and I didn’t really want to think about the sovereignty or rights,” said Wild. “Through listening to a lot of people a lot wiser than me in the first few months on the job, it kind of clicked in. There is something fundamental in section 35.”

Section 35 of the Constitution Act of 1982 is the backbone of indigenous rights in Canadian law, both in the post-1975 land claims and in court decisions. It affirms the indigenous rights and land title that existed before Crown sovereignty was declared and reaffirmed treaties that came before the repatriation of the constitution.

It’s also become the roadmap for the Liberal government’s ambitions on indigenous policy.

Trudeau proposed a major revamp of the portfolio during the election, including the endorsement of the Truth and Reconciliation Commission on residential schools’ final report, the adoption of the United Nations’ Declaration on the Rights of Indigenous Peoples (UNDRIP) and the creation of a national public inquiry into missing and murdered indigenous women. Trudeau’s use of the term ‘nation-to-nation’ also marked a change of course from previous governments for its emphasis on equality.

But for all the grand promises, the Liberal position on self-government and treaties has been short on details.

During a committee appearance in May, INAC Minister Carolyn Bennett — when asked about progress on reconciliation — mentioned Wild’s work on treaties, calling him “amazing” for bringing a new approach.

“It is going to be through creativity and innovation that his happens,” said Bennett before the House of Commons indigenous and northern affairs committee on May 5.

Over the past few months, Bennett — along with Justice Minister Jody Wilson-Raybould — has referred continuously to an expansion of the rights enshrined in section 35 in public statements.

Both ministers have said they want to “breathe life” into section 35, leading to some speculation that the government might codify in law the details of what it contains.

“What’s being signalled there is for a number of years, a lot of people looked at section 35 as an empty box, and the only way to figure out what was in section 35 was to hammer it out through a negotiated treaty,” said Wild. “And what we’re saying is that, actually no; Section 35 is a full box of rights and the point of the treaty is to establish the relationship between the various governments about how the rights are going to be exercised.”

The exploratory tables, an arena for these new interpretations of section 35 to take form, could impact treaty negotiations, self-government powers and resource management across Canada — among other things under Wild’s responsibility.

For indigenous people, the exploratory tables offer an avenue for greater economic development and the reinterpretation of ancient traditions and culture into governance structures. Since they’re still in their infancy and could lead to different deals across the country, their impact is hard to foresee.

Critically, Wild doesn’t have a mandate to implement what indigenous leaders propose to him in the tables.

He can, however, take the ideas he hears to Bennett and cabinet for a mandate to negotiate.

“It’s smart risk-taking,” said Wild, who said everything from central federal departments to his deputies know about the new experimental process. “There is a balance in how you do all of this in a way where you’re not putting ministers into a corner where they don’t have a choice, either.”

Before the co-development approach, the most important meeting place between INAC and nations would be at negotiation tables, which Wild described as “almost like a collective bargaining session – it’s a lot of lawyers in an almost adversarial talk at times.”

The new exploratory tables are meant to create a discussion before new agreements are hammered out between lawyers, a space where more general ideas — centred on socioeconomic outcomes changing over decades — can be discussed, said Wild.

“So instead of me guessing, I’m sitting down and we’re having a conversation about the shared outcomes,” said Wild. “It’s a way of looking at the journey of self-determination as a partnership…listening to how that particular group thinks that journey has to work and then being more responsive to that.”

INAC is willing to entertain treaties that have a time limit so that there is no question the agreement would extinguish aboriginal rights to land and resources. The department is also interested in hearing about governance deals that aren’t necessarily treaties, but deal with specific responsibilities.

INAC also doesn’t mind looking at new kinds of amending formulas for treaties, said Wild, in order to overcome criticism that Ottawa is reluctant to change the agreements once they’re signed.

The department is also open to renegotiating the role of the numbered treaties that cover Ontario and the Prairies, where the Indian Act has a greater role than places with post-1975 agreements on land and government.

During an emergency House of Commons debate on the suicide crisis in the northern Ontario town of Attawapiskat in the House of Commons, Wilson-Raybould said the Indian Act was not the right way to govern the community.

INAC is open to looking at how communities under Treaty 9, which includes Attawapiskat, might want to change that deal and erode the powers of the act, said Wild.

“There’s something in that conversation that’s well worth having and we’re absolutely open to having that conversation,” he said.

INAC is in early talks with the Assembly of First Nations, the national lobby group for First Nations chiefs in Ottawa, to act as an interlocutor for those numbered-treaty communities that want to leave Indian Act, said Wild.

The talks are a major opportunity to incorporate indigenous interpretations of what the numbered treaties meant into their implementation, said AFN National Chief Perry Bellegarde, who hails from Saskatchewan’s Little Black Bear First Nation, which entered into Treaty 4.

“For us in the numbered treaties, there have never been processes to move beyond the Indian Act,” said Bellegarde. “It’s exciting times going forward.”

There are ways to interpret the numbered treaties that allow them to be in line with a nation-to-nation relationship, said Bellegarde.

“Our challenge now is to move beyond the Indian Act and get into treaty implementation and treaty enforcement according to the spirit and intent of treaties,” he said.

The exploratory tables also cover areas where treaties haven’t been signed, like much of British Columbia, where many First Nations have turned down the province’s own treaty process.

INAC is in discussions with the Tsilhqot’in nation over that type of discussion, said Wild. The Tsilhqot’in were behind a major Supreme Court of Canada decision in 2014 that affirmed their title to land in the B.C. interior, the first time the court had ever done so.

“It’s early stages but we’re having that conversation,” said Wild.

The co-development process will also deal with aboriginal organizations that aren’t necessarily recognized as governments like bands under the Indian Act or a body under a self-government agreement.

“A prime example of that is the Manitoba Métis Federation where they don’t fit under any of our current policy frameworks,” said Wild. “That conversation will help us to eventually be able to develop a policy framework that could work for the Métis.”

In many cases, indigenous governments and groups don’t represent actual nations. Often, broader regional groups are unified by a common ethnic or cultural link.

So the co-development process includes the possibility that indigenous governments can reorganize in a way that best reflects what they view as nations, a complicated process because it means opening up the potential for territorial overlaps between them.

That process also has to face practical considerations, said Wild, like when an amalgam of communities is big enough to warrant having its own school system or whether it should use a provincial system.

“Once you hit around five thousand kids, then you start to have a sufficient size that justifies the same types of added extras that a provincial school system has, so that means more assistant teachers, more resources that know how to handle say kids with autism or kids with other special types of needs,” said Wild.

INAC also advises other federal departments and agencies, most notably Natural Resources Canada and the National Energy Board, on how to approach the duty to consult aboriginal groups when major industrial projects are planned on their traditional territories.

But Wild sees that and the exploratory tables as two different things. While land is often discussed in self-government talks, it’s not as central as the discussion over governance more generally.

The work at the tables will give the resource industry clarity, said Wild, despite criticisms over Ottawa endorsing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in May.

“It helps everyone who is trying to do business in that area because the rules of the game are now clearly set out,” he said.

On May 10, Bennett announced in New York that Canada would no longer be officially opposed to UNDRIP, which calls for indigenous rights to land and governance powers to be recognized, among other things. Wilson-Raybould spoke at the UN a day earlier on Canada’s indigenous policies.

Bennett and INAC have said little on what adopting UNDRIP will look like in Canadian law.

However, Bennett said endorsing UNDRIP is “breathing life into section 35,” similar language to that used by Wilson-Raybould during the emergency debate on Attawapiskat.

Both ministers have referred to UNDRIP as acting as a kind of minimum standard as INAC reviews its indigenous rights policies.

In his interview with iPolitics, Wild described the underlying ideas within UNDRIP as being in line with Canada’s section 35.

“The basic principle that is lying underneath the UN declaration..is that we should recognize and reconcile the preexisting rights and sovereignty that indigenous nations enjoyed prior to Crown sovereignty being declared,” he said. “That’s the promise section 35 is trying to bring and the way the courts try to describe it is we’re all here now.”

With the work of the exploratory talks only beginning, Wild foresees the department doing more work at alerting indigenous leaders that the floor is wide open to new ideas.